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Justice undone

When it comes to closing cases, B.C. police trail the nation

When it comes to closing cases and getting serious offenders into court, the statistics for police in British Columbia are the worst in the country. While there are many explanations for this, one significant cause, some police privately complain, is that they are handcuffed by a provincial law requiring Crown attorneys to lay criminal charges. (Police lay charges in most provinces, though Quebec and New Brunswick also require Crown charge approval.) As well, B.C. law sets a higher standard of evidence for laying charges than the Criminal Code requires. Police elsewhere lay charges if there’s a “reasonable” likelihood of conviction. B.C. requires a “substantial likelihood of conviction,” and a determination that prosecution is in the “public interest.”

Commit a crime in Victoria or Vancouver, in other words, and there are lower odds of ending up in court than in Ottawa, Toronto, Regina or Calgary. “Frankly, I view it as a corruption of the system,” Earl Moulton, a retired assistant commissioner of the RCMP, told Maclean’s. “There is no [federal] legal authority for the B.C. system,” says Moulton, a lawyer. “It’s just a usurpation of power.” Doug Stead, a Vancouver-area high-tech entrepreneur and a technical consultant to police on Internet crime, has spent 10 years campaigning against Crown charge approval. He calls the charge standard—“the highest threshold of any civilized government anywhere in the world”—a boon to criminals.

Clayton Pecknold, deputy chief of the Central Saanich Police Service and head of the B.C. Association of Police Chiefs, says past attempts to change the system went nowhere. He says the association continues to raise concerns about long delays before charge decisions are made, about decisions not to charge that may be “based on the capacity of the courts as opposed to the public interest,” and especially about the lack of transparency when the merits of a charge are weighed in private by Crown lawyers.

Several recent Crown decisions have raised public ire. It took more than a year before a decision was made not to lay charges against the RCMP members involved in the Tasering death of Polish immigrant Robert Dziekanski at Vancouver’s airport, and 13 months to lay a lesser charge than investigating police recommended against a Mountie who struck and killed a motorcyclist while driving home from a party. In two other cases, Crown lawyers went to court to avoid explaining charge decisions they’ve made.

The impact of the B.C. law is hard to gauge. The release by Statistics Canada last month of “Police Resources in Canada, 2009” offers one admittedly inexact measure: a comparison of “weighted” crime clearance rates across the country. For the first time StatsCan used a formula that gives greater weight to the clearance of serious crimes like murder, usually through laying a charge, and a lower ranking to charges in minor offences. (Conviction rates aren’t measured in the study.)

The clearance rate for the Vancouver Police Department is less than 28 per cent. For Victoria police, it’s 18 per cent. Percentages for Langley Township, Burnaby, Coquitlam and Richmond—all patrolled by the RCMP—are worse still, between 15.3 and 17.6, the lowest of any major centres in Canada. By contrast, the clearance rate in Toronto is 40 per cent; in Halifax, it’s 37.2 per cent; in Calgary, 34.5.

Sgt. Rob Vermeulen, senior B.C. media relations officer for the RCMP, says the statistics are skewed by the Mounties’ different standard of records management. As well, serious crimes are handled by regional crime and homicide units, so their resolution isn’t credited to the originating detachments.

The Crown and the RCMP don’t agree if charge approval is another factor. Whether the Crown approves a police recommendation for a charge shouldn’t impact clearance statistics, says Neil MacKenzie, a senior Crown and spokesman for B.C.’s criminal justice branch. The RCMP say it does. “If Crown counsel doesn’t believe there is a substantial likelihood of conviction they will not approve the charges and the file will not be reported to StatsCan as cleared,” Vermeulen says.

What isn’t measured are the crimes that go unpunished when the Crown won’t lay charges unless the case is a slam dunk, says Moulton, a former chief superintendent in B.C. He recalls having to appeal to the highest levels of the attorney general’s department to get decisions reversed. “I can think of manslaughter and murder charges they refused to lay, and at the end of the day they were successfully prosecuted.”
MacKenzie says the system works well. The vast majority of charge decisions are laid quickly and while he has no statistics to prove it, he says “common sense dictates” there is a higher rate of successful prosecution when charges are vetted at the outset. Centralized charge authority ensures the Criminal Code is applied consistently across B.C., he says, and it spares people the expense and humiliation of unwarranted charges.

In most cases, the system works well enough in helping arresting officers deal with increasingly complex case law. But are B.C.’s courts fairer as a result, or simply more expedient? On that question, the jury is still out.

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